A spokesman for the Bay of Fundy Inshore Fisherman’s Association says the fishermen will press ahead with their legal challenge to tidal turbines in the Minas Passage in spite of yesterday’s loss in the first round of their court battle.

“But we are saddened that he failed to recognize the difference between irreparable harm to the entire Bay of Fundy and harm to the potential to gather baseline science at the FORCE site,” the statement says referring to the judge’s rejection of claims that deployment of the turbines could cause irreparable harm and prevent the gathering of more baseline data on marine life in the Minas Passage.

The association had asked the Nova Scotia Supreme Court judge to block turbine deployment until the fishermen return to court on February 1-2 to challenge the provincial environment minister’s decision to approve installation of two Cape Sharp turbines at the FORCE test site near Parrsboro. (Cape Sharp Tidal Inc. is a partnership between Emera, parent company of Nova Scotia Power and OpenHydro, now owned by a French company.)

“We may be robbed of the fruits of our legal action in February,” Sproul’s statement continues, “and the chance to gather accurate science in the undisturbed Minas Passage may be lost to all Nova Scotians.”

Sproul adds, however, that the association is happy the judge recognized that the fishermen’s case has merit “and that we have a legitimate complaint to be reviewed in February with respect to the minister’s decision being unreasonable.”

Uphill battle

Although Mr. Justice Campbell’s ruling did say that the fisherman’s association has a serious argument to be made at the hearing in February, he also suggested that the environment minister’s decision to approve turbine deployment had been weighed carefully.

“There was nothing cavalier about the approach that was used,” his ruling says. “Scientists may differ on the proper approach to testing but this was not in any sense a rolling of the dice. There have been extensive studies. The deployment of the turbines with ongoing monitoring of their effects is part of the process of study and assessment.”

The fisherman’s association is arguing, in part, that the minister’s decision was unreasonable because she did not consider concerns about the potential effects of the turbines expressed by members of the public or by aboriginal people. The association contends that the Environment Act along with Environmental Assessment Regulations required Minister Margaret Miller to weigh such concerns before she approved turbine deployment last June.

However, lawyers for the province, Cape Sharp Tidal Inc. and FORCE, the non-profit corporation overseeing the test site in the Minas Passage, argued that those regulations applied only to initial approval of the overall tidal demonstration project in 2009 after an environmental assessment had been conducted. (In 2009, a smaller OpenHydro turbine was deployed at the site, but its blades were soon wrecked by the force of the tides.)

In yesterday’s ruling, Mr. Justice Campbell said he was not prejudging the issue, but did add that applying the regulations each time the minister makes an administrative decision like the one in June “could result in a process that would be difficult at best.”

He also noted that the case “pits the Association’s broad interpretation against a more plain reading of the statute and regulation.”

It would appear that the fisherman’s association will have an uphill battle ahead if the judge in February interprets the legal issues in a similar way.

It is hard to fathom how the lawyers could argue “that those environmental regulations applied only to initial approval of the overall tidal project in 2009.” Was there more behind this argument than just that? I have been following this for 10 years and that’s the first time I’ve heard this. Sounds like ‘weasel words’ to me, but that’s nothing new with this project.

Marke, I’ve added a bit more information to the last section of the piece to make it clearer that the dispute between the fisherman’s association and the lawyers for the province, Cape Sharp and FORCE involves the interpretation of the Environment Act and the Environmental Assessment Regulations. The association argues the minister was required to follow the regulations when she approved these two Cape Sharp turbines. The opposing lawyers say the Environmental Assessment Regulations applied only when the project was first approved in 2009.

Thank you for the clarification, Bruce. It doesn’t really do it for me though. My understanding is that the association is arguing that there is inadequate baseline data to be able to determine any impact on the environment and there needs to be a fuller, more robust baseline created in order to do this. There is also no way to detect fish mortality nor any limits on same. The minister says she will take the turbines “out of the water” if there is any problem. Well, the problem is that the Environmental Effects Monitoring Plans have no capacity to detect any of these type of problems.

Also, it is quite concerning that NS Environment is the body overseeing the project. They have shown themselves to be inadequately funded to do any kind of regulatory oversight, let alone enforcement. It is all well & fine to have regulations in place but if there is no funding to enforce the regulations, then it is merely window-dressing.

What is needed is a 3rd party regulatory body, as recommended by Bob Fournier in his 2011 submission to government regarding offshore renewable energy legislation. It has been conveniently overlooked and oversight has been put into a department that essentially rubber-stamps development projects for the government.

Well here we go…..big government, big business, big courts, big white elephant contraptions and big legal bills and big court cases, and big interpretations of environmental statutes….For God’s sake this misguided fiasco continues to roll down the rails with little or no regard to “the people” or the ginormous cost in public money (oh yes it’s all a private corporation isn’t it?). Excuse the expression…but you can take it to the bank that there will never be a single electron of electricity EVER enter the public electric grid from this dinosaur of a project…period! Who? I ask is going to pay to pull and remove these arks when they fail as fail they will sooner or later….you and I that’s who! The story of the Pied Piper certainly comes to mind as we get in lines with wheel-barrows full of finance money for this “promise” that we are all going to be “in the money” when “the power comes ashore! Now that I think about it, the same story applies to the “rainmaker” story as well. Guess it’s time to sign off for now and go get a drink of “heavy water” at a thousand dollars a fluid ounce.